An Ottawa woman injured in a fall at work says she feels abandoned after the agency that handles workplace insurance claims in Ontario said pre-existing conditions were to blame for her ongoing pain.
“I miss my work. I miss my stable income,” said Sabreen Abu-Zeyada, 41, who has been unable to return to her job as a cashier and closing supervisor at a Food Basics grocery store in Ottawa’s east end since June, when she slipped on the floor and her knee crumpled under her.
The Workplace Safety and Insurance Board (WSIB) covered three payments, but denied any further compensation, citing a pre-existing knee and lower back condition.
In a letter dated Dec. 22, 2022, the WSIB cited an MRI on Abu-Zeyada nearly a month after her fall showed “patella femoral chondropathy” — the breakdown of cartilage on the underside of the kneecap — “which worsens over time,” and that her medical file shows she had a pre-existing back condition.
“I am unable to establish there has been a worsening of the pre-existing conditions,” the board wrote.
Abu-Zeyada hasn’t been able to return to work, which led her to turn to employment insurance and then, subsequently, Ontario Works while she tries to recover.
“I want to be back to normal. I want to be … painless, not using medication, not using canes. I want to be able to walk by myself.”
Abu-Zeyada’s struggles are a familiar story to advocates for injured workers, who say the Workplace Safety and Insurance Board needs to reverse an eight-year-old policy shift they say has allowed it to wield pre-existing conditions as a tool to deny or reduce claims.
The board changed its policy for dealing with pre-existing conditions in 2014, to give case managers more “guidance and rigour” in evaluating workplace injuries, although the justification was likely in use years before.
Simultaneously the board made it a priority to reduce its unfunded liability — the difference between the money the board had versus the future payments it expected to make. That led worker advocates to allege the change was made for financial reasons, though the WSIB has denied that connection.
Since then, the agency’s financial circumstances have reversed, said Maryth Yachnin, a lawyer at IAVGO community legal clinic in Toronto. In 2011, it had an unfunded liability of $14.2 billion. Last year, the WSIB announced it had given back $1.5 billion in surplus funds to eligible businesses.
Yachnin said the board owes workers the costs they have had to bear, and it has an obligation to do so.
Policy ‘defies logic’
In Ontario, more than 300,000 workplaces in the province subscribe to the WSIB, and when they do, injured workers must go through the agency, said Yachnin.
“It’s fair to have to give up the right to sue in exchange for compensation that is fair, but where compensation is denied based on made-up reasons, it is not a fair system and it is not a fair compromise,” she said.
“It really blindsides people at a time when, honestly, it’s maybe one of the worst, most vulnerable times of your life.”
Yachnin said she regularly sees the WSIB ignore the opinion of treating physicians when it comes to someone’s ability to return to work or not.
In a statement to CBC, the WSIB said it could not address Abu-Zeyada’s claim due to privacy reasons, but said it does not deny a claim simply because of a pre-existing condition.
“In some cases, medical information may show that the significance of the pre-existing condition is so great it has overwhelmed the impact of the work-related injury. We respect the expertise of treating physicians and always consider all medical information available before making a decision on a claim,” the statement read.
The board also stated if someone disagrees with a decision, there is a two-level appeals process, including through the Workplace Safety and Insurance Appeals Tribunal (WSIAT).
The reality is the appeal system is a Kafka-esque maze of disaster for a lot of workers.– Maryth Yachnin, lawyer at IAVGO community legal clinic
CBC reviewed WSIAT decisions dating back to 2018 where a worker appealed a reduction of benefits because of a pre-existing condition. The majority of appeals were allowed, at least in part, and determined the WSIB had incorrectly reduced a worker’s benefit for pre-existing conditions.
Yachnin wrote a report in 2017 that found, in the previous year, the tribunal found the WSIB incorrectly denied benefits “without adequate, or any, evidence or reason” in 75 decisions and, in 56 cases, “ignored medical evidence that showed that the worker had not recovered.”
Yachnin also said it’s not unusual for the appeals process to take five or even 10 years, and is extremely complicated, potentially involving upwards of 10 decisions on a single file, all of which may need to go through an appeal — making it unsustainable to fight.
“The reality is the appeal system is a Kafka-esque maze of disaster for a lot of workers,” she said. “Many people are forced to give up.”
Maryth Yachnin, a lawyer at IAVGO community legal clinic said it is not unusual for a worker to take five to 10 years to get through the Workplace Safety and Insurance Appeals Tribunal appeal process.
Workers often turn to social assistance, contrary to the intentions of workers’ compensation — to ensure industry bears the cost of injuries they cause, she said.
Abu-Zeyada had a similar fall at the same grocery store in November 2008 and took a few months off at the time. She then had to have surgery that spring.
She has retained a lawyer to fight the WSIB’s denial of her claim. She says while a brace stabilizes her knee, she remains in constant pain and expects to have another surgery.
“It has been a torture for me sleeping the night,” she said. She believes she has paid her dues, and wants the support of the WSIB to help pay for treatments, including physiotherapy, a chiropractor and massage therapy, along with a better knee and back brace. But mostly, she says, she wants to be her old self.
“I really want to be like Sabreen, who [I] was … a year ago.”
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